Stevens-Bratton v. TruGreen, Inc.

KASIE STEVENS-BRATTON,individually and on behalf of all others similarly situated, Plaintiff, v. TRUGREEN, INC., Defendant.

No. 2:15-cv-2472

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

July 24, 2020

ORDER

Before the Court is Defendant TruGreen, Inc.'s ("TruGreen") July 26, 2017 Motion to Strike Class Allegations Based on Plaintiff's Class Action Waiver ("Motion to Strike Class Allegations"). (ECF No. 78.) Plaintiff Kasie Stevens-Bratton responded on August 23, 2017. (ECF No. 89.) TruGreen replied on September 8, 2017. (ECF No. 101.)

For the following reasons, TruGreen's Motion to Strike Class Allegations is DENIED.

I. Background

TruGreen is a lawn care service provider with its headquarters in Memphis, Tennessee. (ECF No. 1 ¶ 12.) On May 15, 2013, Stevens-Bratton entered into an agreement with TruGreen for lawn care services (the "Service Agreement"). (ECF No. 22-1 at 2-3.) The Service Agreement includes contact, mandatory arbitration, and class action waiver provisions:

CONTACT INFORMATION. If I have provided TruGreen with my cell phone number, I agree that TruGreen may contact me on that number using an automatic telephone dialing system or prerecorded or artificial voice to discuss my account and lawn care services, including current and possible future services, customer service and billing. I understand that providing my cell phone number is not required to purchase TruGreen's services and that I may revoke this permission at any time.

MANDATORY ARBITRATION. Purchaser and TruGreen agree that any claim, dispute or controversy ("Claim") between them or against the other or the employees, agents or assigns of the other, and any Claim arising from or relating to this agreement or the relationships which result from this agreement including but not limited to any tort or statutory Claim shall be resolved by neutral binding arbitration by the American Arbitration Association ("AAA"), under the Rules of the AAA in effect at the time the Claim is filed ("AAA Rules").... Each party shall be responsible for paying its own attorneys' fees, costs and expenses, the arbitration fees and arbitrator compensation shall be payable as provided in the AAA Rules. However, for a Claim of $15, 000 or less brought by Purchaser in his/her/its individual capacity, if Purchaser so requests in writing, TruGreen will pay Purchaser's arbitration fees and arbitrator compensation due to the AAA for such Claim to the extent they exceed any filing fees that the Purchaser would pay to a court with jurisdiction over the Claim. The arbitrator's power to conduct any arbitration proceeding under this arbitration agreement shall be limited as follows: any arbitration proceeding under this agreement will not be consolidated or joined with any arbitration proceeding under any other agreement, or involving any other property or premises, and will not proceed as a class action or private attorney general action. The foregoing prohibition on consolidated, class action and private attorney general arbitrations is an essential and integral part of this arbitration clause and is not severable from the remainder of the clause.... This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act. 9 U.S.C. Sections 1-16.... Neither party shall sue the other party with respect to any matter indispute between the parties other than for enforcement of this arbitration agreement or of the arbitrator's award. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH ARBITRATION.

CLASS ACTION WAIVER. Any Claim must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar basis ("Class Action"), and the parties expressly waive any ability to maintain any Class Action in any forum whatsoever. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action. Nor shall the arbitrator have authority to make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only in a court of competent jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.

(ECF No. 22-1 at 3.) The Service Agreement allows cancellation "at any time by written oral notification . . . ." (Id.) Cancellation is "without penalty or obligation." (Id.) The Service Agreement is silent on the terms and obligations, if any, that survive its cancellation. (See generally id.)

TruGreen provided lawn care services to Stevens-Bratton from May 15, 2013, until May 15, 2014, when Stevens-Bratton cancelled the Service Agreement. (See ECF No. 22-1 at 2; ECF No. 39-1 ¶ 2.) Stevens-Bratton provided two telephone numbers on the Service Agreement, one under the "Home Phone" section, and a different one under the "Cell Phone" section. (ECF No. 22-1 at 2.) On January27, 2015, Stevens-Bratton began to receive telemarketing calls from TruGreen on her cellular telephone. (ECF No. 1 at ¶ 18.) Stevens-Bratton alleges those calls were made by an automatic telephone dialing system ("ATDS"). (See id. ¶¶ 29-30.) Stevens-Bratton asked TruGreen to stop calling, but the calls continued. (Id. ¶ 23.)

On July 15, 2015, Stevens-Bratton filed this putative class action against TruGreen, alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. (ECF No. 1.) On July 15, 2015, Stevens-Bratton sought class certification or, in the alternative, a stay of certification briefing pending discovery. (ECF No. 9.) On August 26, 2015, TruGreen filed an answer and a motion to dismiss and compel arbitration or, in the alternative, to stay the litigation. (ECF Nos. 22, 24.) On January 12, 2016, the Court denied Stevens-Bratton's motion for class certification, granted TruGreen's motion to compel arbitration, dismissed all claims against TruGreen, and entered a judgment for TruGreen. (ECF Nos. 44-45.)

Stevens-Bratton appealed, and the Sixth Circuit reversed. Stevens-Bratton v. TruGreen, Inc., 675 F. App'x 563 (6th Cir. 2017). The Sixth Circuit held that "the dispute between Stevens-Bratton and TruGreen d[id] not 'arise under' the [Service Agreement]," and therefore, the Service Agreement's arbitration provision did not bind Stevens-Bratton to arbitration because "thepresumption in favor of postexpiration arbitration of matters [] appl[ies] 'only where a dispute has its real source in the contract.'" See Stevens-Bratton, 675 F. App'x at 565, 567-71 (citing Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. NLRB, 501 U.S. 190, 193 (1991)). On appeal, TruGreen argued that, if the Sixth Circuit held the arbitration provision inapplicable, the class action waiver provision in the Service Agreement was applicable, and the Sixth Circuit should affirm on that ground. (Id. at 571.) The Sixth Circuit declined to address TruGreen's class action waiver argument because "the district court did not make findings of fact or conclusions of law regarding the merits of Stevens-Bratton's motion for class certification" and "there [wa]s no record to review regarding application of the class action waiver." (Id.)

On July 26, 2017, TruGreen filed its Motion to Strike Class Allegations based on the class action waiver provision in the Service Agreement. (ECF No. 78.)

II. Jurisdiction

The Court has jurisdiction over Stevens-Bratton's claims. Under 28 U.S.C. § 1331, United States district courts have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Stevens-Bratton's complaint alleges violations of the TCPA. (ECF No. 1.) The Court has federal question jurisdiction. See Mims v. Arrow Fin. Servs.,LLC, 565 U.S. 368, 376 (2012); accord Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010).

III. Standard of Review

A court may "require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly." Fed. R. Civ. P. 23(d)(1)(D). "A court may strike class action allegations before a motion for class certification where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met." Loreto v. Procter & Gamble Co., No. 1:09-cv-815, 2013 WL 6055401, at *2 (S.D. Ohio Nov. 15, 2013) (citing Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 945 (6th Cir. 2011)). Motions to strike class allegations may be granted "where the unsuitability of class treatment is evident on the face of the complaint and incontrovertible facts." 1 McLaughlin on Class Actions § 3:4 (10th ed. 2020) (citing Doe v. City of Memphis, 928 F.3d 481, 497 (6th Cir. 2019) (reversing order striking class allegations where the panel concluded that discovery might support Rule 23 requirements and no "prototypical factual issue" that would prevent certification was apparent)). "Class allegations also may be stricken when they are asserted in contravention of a clear legal bar against class treatment of the action . . . ." Id. (collecting cases).

IV. Analysis

TruGreen argues that Stevens-Bratton's class allegations should be stricken because the Service Agreement's class action waiver provision requires her to bring "[a]ny Claim" in her "individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar basis ("Class...